State v. Carr

1.Pleas: Courts. A trial court has discretion
to allow defendants to withdraw their guilty or no contest
pleas before sentencing.

2.
Pleas: Appeal and Error. An appellate court
will not disturb the trial court's ruling on a
presentencing motion to withdraw a guilty or no contest plea
absent an abuse of discretion.

3.
Pleas. When a defendant moves to withdraw
his or her plea before sentencing, a court, in its
discretion, may sustain the motion for any fair and just
reason, provided that such withdrawal would not substantially
prejudice the prosecution.

4.
Pleas: Proof. A defendant moving to withdraw
his or her plea before sentencing has the burden to show the
grounds for withdrawal by clear and convincing evidence.

5.
Pleas: Evidence. Newly discovered evidence
can be a fair and just reason to withdraw a guilty or no
contest plea before sentencing.

6. ___:
___. If a defendant moves to withdraw his or her plea because
of newly discovered evidence, the court must consider the
credibility of the newly discovered evidence.

7.
Pleas. To support a finding that a defendant
freely, intelligently, voluntarily, and understandingly
entered a guilty plea, a court must inform a defendant about
(1) the nature of the charge, (2) the right to assistance of
counsel, (3) the right to confront witnesses against the
defendant, (4) the right to a jury trial, and (5) the
privilege against self-incrimination.

8. ___.
To support a finding that a defendant freely, intelligently,
voluntarily, and understandingly entered a guilty plea, the
record must show a factual basis for the plea and that the
defendant knew the range of penalties for the crime charged.

[294
Neb. 186] 9. Pleas: Right to Counsel. A
court's failure to inform a defendant of the right to
assistance of counsel does not necessarily render the plea
invalid if the defendant was actually represented by counsel.

Appeals
from the District Court for Lancaster County: Steven D.
Burns, Judge.

Sarah
P. Newell, of Nebraska Commission on Public Advocacy, for
appellant.

Joshua
D. Carr argues that the court abused its discretion by not
allowing him to withdraw his guilty and no contest pleas
before sentencing because of newly discovered evidence. After
the court accepted Carr's pleas, he deposed a previously
unknown witness whose testimony, Carr contends, would impeach
the State's witnesses. The court overruled Carr's
motion to withdraw his pleas because it determined that the
newly discovered evidence did not exculpate Carr and was not
credible. We conclude that the court did not abuse its
discretion, and we therefore affirm.

BACKGROUND

In
2014, the State filed two informations against Carr. In case
No. S-15-921, the State charged Carr with robbery and use of
a firearm to commit a felony for events occurring on
September 11, 2014 (the robbery case). In case No. S-15-922,
the State charged Carr with first degree murder, attempted
robbery, possession of a stolen firearm, and two counts of
use of a firearm to commit a felony (the homicide case). The
State [294 Neb. 187] alleged that the homicide case arose
from the robbery and death of Maurice Williams on August 30,
2014.

Carr
and the State reached a plea agreement. He pleaded guilty to
the robbery charge in the robbery case, and in exchange, the
State dismissed the use of a firearm charge. In the homicide
case, Carr pleaded no contest to an amended information
charging him with attempted robbery, use of a firearm to
commit a felony, and manslaughter.

Before
accepting Carr's pleas, the court received a factual
basis for the charges. For the robbery case, the prosecutor
stated:

[0]n Thursday, September 11th, 2014 at
approximately 2:00 a.m., three male individuals contacted the
residents of an apartment [on] Huntington Avenue, Lincoln,
Lancaster County, Nebraska, at the front door. The three
individuals said they were looking for a place to "cool
out."

After a short period of time, one of the three individuals
pulled out a black semi-automatic handgun and asked where the
marijuana was. As one individual pointed a gun at and
threatened the individuals in the apartment . . . the other
two searched the apartment and collected [cash and personal
property].

A person who was in the apartment during the robbery
identified the three male individuals responsible as . . .
Carr, Micheal [sic] Nevels and Jomarcus Scott.

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